Sri Lanka: The Nineteenth Amendment to the Constitution - from start to finish

The Sri Lankan Parliament passed the Nineteenth
Amendment to the Constitution Act on 28th April 2015, but due to
the large number of committee stage amendments, it was certified into law by
the Speaker only on 15th May. In the January presidential election, President
Rajapaksa’s former Minister Maithripala Sirisena secured a surprise win as the
common opposition candidate on the promise of implementing a 100-day programme
of constitutional and governance reforms, after which parliamentary elections
were to be held. The drafting process of the Nineteenth Amendment was chaotic,
sometimes fractious, and did not meet either its own deadlines or contemporary
benchmarks of transparency and public consultation. Upon election Sirisena
appointed Ranil Wickremesinghe, the then Leader of the Opposition, as his Prime
Minister at the head of a minority government, which was forced to accommodate
not only differing views within a politically mixed ruling coalition but also
the opposition that continues to hold the parliamentary majority. The President
was thus left in the unenviable position of having to persuade his former party
colleagues to support his reforms, many of whom still loyal to the deposed
Rajapaksa. The President, however, has shown an admirable commitment to his
electoral mandate to reform the presidency in sustaining consultations within
his party, and in cooperation with PM Wickremesinghe, the necessary two-thirds
majority was eventually secured in Parliament. To broker consensus on the
presidential reforms contemplated by the Nineteenth Amendment, one key
concession was to introduce electoral reforms demanded by the opposition in the
hope of winning the forthcoming parliamentary election under the altered rules.
This is now to be embodied in the Twentieth Amendment to the Constitution
currently under negotiation.

The compromise reflected in the Nineteenth Amendment was achieved through
a centrist policy that rejected both the Rajapaksa loyalists, who wanted to
retain the hyper-presidential state, and others who wanted an early election to
sweep away the Rajapaksa loyalists in Parliament. This all-party consensus should
notionally strengthen the durability of the reforms. It also signals the return
to a more democratic form of constitutional politics, when contrasted with the
authoritarian efficiency of the Rajapaksa regime in passing the ruinous Eighteenth
Amendment, which abolished the two-term limit on presidential elections, within
ten days. The final text has disappointed those Sri Lankans who wanted the
abolition of executive presidentialism. Yet, the Nineteenth Amendment reflects
what is politically possible within the current balance of power, and the
government has indicated that it will seek a fresh mandate for a new
constitution in the forthcoming parliamentary election.

The Main Changes of the
Nineteenth Amendment

The Nineteenth Amendment has introduced a number of long-overdue reforms.
The presidential term is reduced from six to five years and the two-term limit
is restored, although the incumbent can seek re-election after four years in the
first term. Parliament’s term is also reduced to five years. Significantly, the
President can no longer dissolve Parliament until the expiration of four and a
half years of its term, unless it requests so by a resolution of a two-thirds
majority. These provisions restrict presidential discretions and strengthen the
separation of powers by establishing more or less fixed presidential and
parliamentary terms. Presidential immunity from suit has been marginally
abridged by extending the Supreme Court’s fundamental rights jurisdiction to official
acts of the President.

Another positive feature is the repeal of the ‘urgent bill’
procedure. Previously, a Bill endorsed by the Cabinet as being urgent in the
national interest could be passed by a fast-tracked process, which attenuated
the scope for pre-enactment challenges in the Supreme Court. This procedure has
been frequently abused, especially in using it to pass manipulative
constitutional amendments. Similarly, a minor improvement is that all Bills are
now required to be gazetted not seven but fourteen days before the start of the
legislative process, which again should improve the scope for legal challenges.

The Amendment restricts the number of Cabinet Ministers to thirty,
as well as limits the number of other Ministers, although if the first and
second largest parties represented in Parliament come together to form a
government, the size of the Cabinet could be enlarged through an Act of
Parliament. This strengthens Parliament’s independence by limiting the scope
for the co-option of MPs through patronage appointments and vote bloc
clientelism. This practice was taken to preposterous levels by the Rajapaksa
regime but it has been a major problem of Sri Lankan political culture for much
longer. Addressing another aspect of the excessive politicisation of law
enforcement during the Rajapaksa era, it is now expressly provided that the
Attorney General and the Inspector General of Police must retire upon reaching
the age of sixty.

Freedom of information has been added to the Fundamental Rights
Chapter, making it a judicially enforceable right. Incidentally, the 100-day
programme also proposed freedom of information legislation to provide the
institutional apparatus for the exercise and promotion of the constitutional
right to information. While much progress was made in the drafting of a Right
to Information Bill, this has fallen victim to the political exigencies of passing
the Nineteenth Amendment that overtook all else in the 100-day programme. The government
has assured that this legislation will be enacted by the next Parliament but it
demonstrates again the lack of forethought and realism in the design of the
programme whilst in opposition.

Perhaps the strongest feature of the Nineteenth Amendment is the
de-politicisation framework that is established with the Constitutional Council
and the independent commissions. This restores and adds to the Seventeenth
Amendment framework that was repealed or weakened by the Eighteenth Amendment. The
Constitutional Council has two functions: it recommends presidential
appointments to the independent commissions and it approves presidential
appointments to high posts such as superior court judges. It was originally
proposed that the Council would comprise of a majority of independent eminent
persons along with the PM and the Opposition Leader under the chairmanship of the
Speaker. However, in the parliamentary debate, the opposition claimed that a
majority of civil society members would render the Council democratically
unaccountable. The compromise was to allow for a composition of seven MPs and
three independents. While this weakens the apolitical character of the Council,
it is nonetheless a multiparty body and therefore can be expected to be
politically non-partisan. As Presidents have refused to follow the Council’s
recommendations under the Seventeenths Amendment, it is now provided that if
the President has not acted pursuant to recommendations, then such appointments
are deemed made by operation of law after fourteen days. Independent
commissions to oversee the public service, judiciary, the police, elections,
and human rights are all restored. The bribery and corruption commission has
been given constitutional standing and its powers have been enhanced. New
commissions on audit and procurement have been introduced. These are all
indubitably progressive institutional reforms; however, it remains to be seen whether
they are robust enough to overcome inevitable resistance from vested interests
to engender professionalism, independence, and capacity in the public sector, and
to reshape a decrepit political culture with a high tolerance for
authoritarianism and corruption.

There are also a number of specific provisions that have largely
escaped attention but seem to be designed to prevent a Rajapaksa revival. Mahinda
Rajapaksa himself is eliminated from presidential politics by the bar on
presidential office for persons who have served two terms. His brother
Gothabhaya has recently been mooted as a prospective parliamentary candidate.
The autocratic former Defence Secretary is widely feared and even loathed in
many quarters, but he perhaps retains a heroic status among the rank and file
of the armed forces for his role in finishing the war against the Tamil Tigers and
his zealous commitment to militarising large swathes of the public sector. But
he is a Sri Lankan as well as American citizen and now dual citizens are
disqualified for standing in parliamentary elections. President Rajapaksa’s
heir apparent is his 29-year old son Namal, an MP representing the family
stronghold of Hambantota. Whether or not designed with him in mind, the age
requirement for presidential candidates has now been raised from thirty to
thirty-five, which effectively disqualifies him from contesting the next
presidential election in 2020.

Presidentialism: Reform or
Abolish? The Tussle over the ‘Advice Clause’

What eventually became
the Nineteenth Amendment went through a number of
schemes between January and April. The process was marked by a lack of
transparency and public information, while the governing parties tried to
resolve their own differences whether to abolish or merely reform the executive
presidency. The struggle between the ‘abolitionists’ and the ‘reformists’ ended
with the latter prevailing, because their view was more in line with what the opposition
parliamentary majority was willing to support. Given the centrality of the
institution to the structure of the 1978 Constitution, the abolitionists
were perhaps too optimistic in thinking that deeper changes to the presidency
could be made without a referendum. The main disagreement centred on the
‘advice clause’. If the abolitionists succeeded in establishing the principle
that the President always acts on the advice of the Prime Minister, then this
would transform the presidential 1978 Constitution into a parliamentary
constitution; which was why the reformists were so intent on ensuring that the
advice clause was either removed or so circumscribed in its application as to
be innocuous.

The initial scheme of
the reforms was embodied in a Concept Paper, which was never officially
published but was leaked in February. This conceptual
scheme was also rendered into an unofficial legal draft, again never properly
published but also leaked. This underwent further changes
before the Nineteenth Amendment to the Constitution Bill was officially
gazetted on 13th March. The provisions of the gazetted Bill were challenged before the
Supreme Court, which heard the petitioners and the Attorney General over three
days in early April. The Court’s determination was then communicated
to the Speaker, who informed Parliament of its findings on 9th
April. An unusual feature of the judicial proceedings was that the AG had to
inform the Court, on behalf of the government, of a series of amendments to the
text already before Court. The Cabinet had earlier agreed amendments in
response to criticisms of the gazetted Bill. The Court therefore had to make
its determination on whether or not the Bill required a referendum not only on the basis of the published Bill but also the
amendments proposed by the government through the AG. A memorandum containing
the list of changes that the government intended moving at the committee stage of
the legislative process was, yet again, not officially published but leaked.

The Bill was taken up
for debate on 28th April and was passed on the same day. It is
remarkable how Sri Lankan parliamentary procedure allows a constitutional
amendment to be passed within a day, with the committee stage being a Committee
of the Whole House. This not only precludes consultation, reflection, and
line-by-line scrutiny, but also encourages MPs to ‘play to the gallery’. There
are therefore four key stages to this unnecessarily labyrinthine process that
require examination: the Concept Paper, the Gazetted Bill, the Supreme Court
determination, and the final text of the Nineteenth Amendment Act.

The Concept Paper

The Concept Paper
outlined an unusual hybrid system of government that would nevertheless be
effectively an abolition of executive presidentialism. In this framework, the
President would be the head of state, but not the head of government, with the
Prime Minister as the head of the Cabinet. Crucially, the President would be
required to act on the advice of the Prime Minister, or other Minister
authorised by the PM, except in the appointment of the Prime Minister or other
specific acts, in which he acts in his own discretion under the constitution. By
contrast, in a draft constitutional amendment bill the Jathika Hela Urumaya (JHU) party published in late 2014, the President
would have a more substantive role in government, including a special
responsibility for defence and ensuring the territorial integrity of the state.
The JHU is a small but (disproportionately) influential
party of Sinhala-Buddhist nationalists, who are part of the current government,
having prominently supported the common opposition after abandoning Rajapaksa
in late 2014. Its Cabinet Minister Champika Ranawaka has led the anti-abolition
campaign within the government since January. These competing views about the
form of government, which reflect much deeper ideological differences on
fundamental issues such as the nature of the state and attitudes to the
accommodation of minority claims, gave rise to serious and public disagreements
between the coalition partners when the contents of the Concept Paper became
known.

The cumulative effect
of the reforms outlined in the Concept Paper was the establishment of what is
effectively a parliamentary executive with a titular presidency. However, the
holdover from the pre-existing framework was in the mode of election of the President,
which was by a state-wide direct election. This was unusual to the extent that
titular Presidents are commonly and more appropriately elected by Parliament, and
where relevant sub-state legislatures, rather than by direct election. Changing
the mode of election was reserved for the next Parliament. The JHU proposal
also envisaged a direct election, but at least this was more consistent with
the reformed but still presidential system that it sought.

The Gazetted Bill

The Gazetted Bill also
involved a significant reduction of presidential powers, proposing the PM to be
the head of the Cabinet and the President to act on his advice in the
appointment and dismissal of Ministers. However, the language of the draft
clauses were less expansive than the Concept Paper. The provision that the
President ‘always’ acts on advice was absent, and instead a more conventionally
Gaullist formulation of the President acting on advice on some matters and in
his own discretion in others was included. This was therefore a continuation of
presidentialism in principle, albeit with the 1978 Constitution’s more
egregious features removed. But the proposed dyadic
executive assumed a democratic culture of governance – which for example can
accommodate ‘cohabitation’ – that has been demonstrably absent in Sri Lanka in
the past. However, the JHU found this too to be too radical a diminution of the
presidency and consequently the government undertook to further dilute the
powers of the Prime Minister when the Bill was taken up by the Supreme
Court.

The Supreme Court Determination

The Supreme Court disagreed
with petitioners who argued that any of the changes proposed in the Bill would
be unconstitutional because they would take executive power away from the
President, in whom it is solely vested, thereby violating the basic structure
of the constitution. On the contrary, the Court noted that executive power was
exercised by the President as well as the Cabinet even under the unreformed
constitution. Executive power was to be understood as an aspect of the
sovereignty of the people, not something that was exclusive and personal to the
individual holding the office of President. While therefore executive power may
be delegated by the President, or divided between actors in its exercise, the
constitution nonetheless required that the President held the ultimate
executive authority.

The provisions of the
Bill seeking to make the Prime Minister the head of the Cabinet, and exercising
the attendant powers without recourse to the President, would therefore be
unconstitutional and would need a referendum to be passed, but only to the
extent that the President was excluded from the exercise of these executive
powers by the Prime Minister and Cabinet. Presumably then, as long as the
President remained the ultimate authority, the exercise of executive power ‘on
the advice of’ the Prime Minister or Cabinet would not be unconstitutional. In
other words, the implication of the Court’s reasoning seemed to be that even if
the President is in effect largely titular in the day-to-day exercise of
executive power – because he always acts on the advice of Ministers in the
running of the government – that would not be unconstitutional provided that
those powers are exercised for and on behalf of the President.

This meant that the
government had to remove these provisions, as for political reasons it wished to pass the
Nineteenth Amendment without a referendum. These changes, among others, were
done at committee stage when the Bill returned to Parliament. The opposition majority
was willing to concede much less however, and consequently, some language from
the old constitutional provisions was reintroduced into the text of the
Nineteenth Amendment.

The Final Text of the Nineteenth Amendment

Given the JHU
opposition within the government, the Supreme Court opinion on the necessity of
a referendum and the political opposition of the parliamentary majority, the expansive
promise of the Concept Paper was significantly cut down.

The President remains head of state, head of the executive and of
the government, and the commander-in-chief. He is a member and the head of the
Cabinet, which is in turn responsible to Parliament for the direction and
control of government. The President appoints the MP most likely to
command the confidence of Parliament as the Prime Minister. And the President
determines the number of Cabinet Ministries, the assignment of subjects to
Ministers, and retains the power to appoint and dismiss Ministers. In relation
to all these powers, the President needs to only consult the Prime Minister when
he deems it necessary. The advice clause is retained in a very minimal way,
where the President is required to act on the advice of the Prime Minister only
in identifying specific MPs for appointment as Cabinet and other Ministers. It
is difficult to discern why this requirement was retained when otherwise, all the
old presidential discretions in respect of appointments and the direction and
control of the Cabinet have been restored.

Where does this leave Sri
Lanka?

The 1978 Constitution after the Nineteenth Amendment remains
strongly presidential as the Prime Minister’s role has been enhanced only
marginally, and even this will depend on the President’s willingness to
co-operate with the PM. The new limits placed on presidential power, however, effect
a constitutional regime change, and if well implemented, would ensure that the landmark
presidential election of January 2015 was not a mere change of government for
the continuation of business as usual. Under the Rajapaksa regime, power was
concentrated in a ruling elite and while it was populist in its methods of
political mobilisation through the invocation of a majoritarian nationalist
ideology, this did not mean access to political power for citizens at large.
This regime was voted out in January on the common opposition’s pledge to
fundamentally change the structures, rules and procedures of the Sri Lankan
state. While retaining the presidential character of the constitution and the
state, the Nineteenth Amendment has established a more even structural balance
between the three organs of government and a thoroughgoing institutional
framework for good governance.

This process, and the evolution of the advice clause especially, highlight
several characteristics of the ‘Sri Lankan way’ of constitutional reform. Constitutional
historians would see path dependent resonances between the Nineteenth (and Twentieth)
Amendment process and constitutional reform efforts of the past, especially the
elitist nature of the decolonisation
process. The modern Sri Lankan state was created by a small group of local
leaders, constitutional advisors, and colonial officials that seems to have established
a tradition with little space for mass political mobilisation, public
deliberation in constituent assemblies, and open negotiation of group interests.
While the recent reform process has balanced competing group interests within
Parliament and government to a greater extent than in the 1940s, it
nevertheless was an exercise in representative rather than participatory
democracy. Even though the presidential campaign of 2014/5 engendered a
remarkable societal discourse on democracy and good governance, public
involvement in the process of constitutional reform stopped abruptly on the day
of the election. No effort was made even to share evolving documents with the
public, let alone put in place a framework of public consultation, maintaining
the elitist nature of Sri Lankan constitution-making. Secondly, while a wide
political consensus was built for the democracy reforms, consensus is unlikely
to extend to the state restructuring required to address Tamil and other
minority demands for devolution and power-sharing. To address these issues in
the new constitution the government seeks to promulgate in the next Parliament,
it will need to spearhead a far more rigorous consensus-building process across
ethnic communities. Thirdly, the significance of personalities in Sri Lankan
politics continues to extend to constitutional change. While deeper philosophical
differences about presidentialism and parliamentarism between abolitionists and
reformists played a part, it is clear that the eventual compromise was decided more
in light of how Sirisena and Wickremesinghe might work together in the future.

The Nineteenth Amendment represents an incremental step in the right
direction in democratising the Sri Lankan state. It would have been desirable
to cut back presidentialism further but the Amendment achieved what is
politically possible in the present. It is strong in establishing a credible
framework for de-politicisation but its full potential can only be realised
through meaningful implementation. The process of its enactment was convoluted and
lacked public involvement. Nonetheless, the substantive reforms and the unruly
multi-polarity of political views that characterised the process signifies a
return of Sri Lankan politics to an older and more democratic mould, after the interlude
of the Rajapaksa regime in which populism, nationalism, and authoritarianism retarded
Sri Lanka’s constitutional development.

Dr Asanga Welikalais ESRC
Teaching Fellow in Public Law at Edinburgh Law School and Associate Director of
the Edinburgh Centre for Constitutional Law. He is also a Senior Researcher of
the Centre for Policy Alternatives (CPA), Sri Lanka.

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.